Hutchins #438751 v. Pollack et al

Filing 74

ORDER ADOPTING REPORT AND RECOMMENDATION 63 , Granting 54 , and Denying as moot 72 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANIEL HUTCHINS #438751,
Plaintiff,

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v.
JOHN C. POLLACK, et al.,
Defendants.

No. 1:22-cv-950
Honorable Paul L. Maloney

ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the court on Defendants’ motion for summary judgment.
(ECF No. 54). Plaintiff filed a response in opposition. (ECF No. 55). Plaintiff then moved
to strike one of Defendants’ exhibits attached to their motion for summary judgment. (ECF
No. 56). Judge Berens issued a report and recommendation resolving both motions. The
court will adopt the report and recommendation.
I. Background
Plaintiff, Mr. Daniel Hutchins, filed a pro se complaint against Branch County Sheriff
John Pollack, Daryl T. Parker, M.D., and Shauna Harmon, R.N. Plaintiff alleged several
claims stemming from his detention at the Branch County Jail. After reviewing the complaint
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c), the court
dismissed Plaintiff’s claims against Pollack. (ECF Nos. 10, 11). The court allowed Plaintiff’s
claims for denial of dental and medical care against Defendants Dr. Parker and Nurse
Harmon and his First Amendment retaliation claim against Nurse Harmon to proceed. (ECF
Nos. 10, 11).

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Judge Berens’s report and recommendation (“R&R”) would deny Plaintiff’s motion
to strike and grant Defendants’ motion for summary judgment. Thereafter, Plaintiff filed
objections to the R&R. (ECF No. 66). Defendants filed a response to Plaintiff’s objections.
(ECF No. 68).
II. Legal Standard
After being served with a report and recommendation issued by a magistrate judge, a
party has fourteen days to file written objections to the proposed findings and
recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). A district court judge
reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3). Only those objections that are specific are entitled to a de
novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per
curiam).
“[A]n objection that does nothing more than state a disagreement with the magistrate’s
suggested resolution, or simply summarizes what has been presented before, is not an
‘objection’ as that term is used in the context of Federal Rule of Civil Procedure 72.” Brown

v. City of Grand Rapids, No. 16-2433, 2017 WL 4712064, at *2 (6th Cir. June 16, 2017)
(unpublished order). General objections and reassertions of the same arguments already
addressed by the magistrate do not focus the district court’s attention on any specific issues
for review, thereby making the initial reference to the magistrate useless. The functions of
the district court are effectively duplicated as both the magistrate and the district court
perform identical tasks. The duplication of time and effort wastes judicial resources rather
than saving them and runs contrary to the purposes of the Magistrates Act. Zimmerman v.
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Cason, 354 F. App’x 228, 230 (6th Cir. 2009) (quoting Howard v. Sec’y of Health and
Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)).
III. Analysis
Plaintiff raises several objections. Plaintiff objects to the R&R’s findings that his
deliberate indifference claim and retaliation claim failed. He also objects to the R&R because
he was not provided counsel.
A.
Plaintiff’s first objection argues that the R&R erred in its determination that Plaintiff
failed to satisfy the objective component of the deliberate indifference analysis as it relates to
Plaintiff’s epilepsy. The R&R found that Plaintiff’s epilepsy is a chronic condition and not an
“obvious” life-threatening condition. The R&R relied on Dearing v. Mahalma, No. 1:11-cv204, 2013 WL 8696751 (S.D. Ohio Oct. 7, 2013), report and recommendation adopted,
2014 WL 2812736 (June 23, 2014) (finding that chronic pain from a seventeen-year-old
gunshot wound did not fit into the “obvious” category of medical conditions).
The R&R correctly concluded that Plaintiff failed to establish the objective
component for his claim because he failed to present evidence establishing the detrimental
effect of the delay in treatment. Plaintiff did not present evidence of an epileptic seizure or
some other event which could make his condition “obvious.” Plaintiff does properly cite a
Sixth Circuit case that found epilepsy was sufficient to meet the objective component under
this analysis. Newberry v. Melton, 726 F. App’x 290, 295 (6th Cir. 2018). But that plaintiff
suffered from “frequent, often lengthy, and aggressive convulsions.” Id. Plaintiff did not
provide evidence indicating he also suffered from the kinds of episodes that the plaintiff in
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Newberry suffered. Illness manifests itself differently in everyone, and a mere diagnosis of
epilepsy is insufficient to make Plaintiff’s illness “obvious.” See Blackmore v. Kalamazoo

Cnty., 390 F.3d 890, 897 (6th Cir. 2004) (explaining that obvious conditions are those that
even a layperson could identify as life-threatening). And even if Plaintiff was correct, his claim
still failed under the R&R’s analysis of the subjective component of his deliberate
indifference claim. (ECF No. 63 at PID 399). Plaintiff’s first objection is overruled.
B.
Plaintiff’s second objection concerns two issues related to Plaintiff’s retaliation claim
against Defendant Harmon. To establish a prima facie case of retaliation, a plaintiff must
show (1) he engaged in protected conduct; (2) the defendant took an adverse action against
him “that would deter a person of ordinary firmness from continuing to engage in that
conduct;” and (3) the adverse action was taken (at least in part) because of the protected
conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). The R&R
concluded that Plaintiff met his burden on the first element (engaged in protected conduct)
but did not meet his burden on the second element (adverse action) and third element
(causation).
Plaintiff argues that the R&R improperly relied on evidence from the Defendants and
did not credit his own affidavit. In finding that Harmon’s refusal to send Plaintiff back to the
dentist on July 7, 2022 was not an adverse action, the R&R says that “Hutchins had claimed
that Dr. Frederick told him that another tooth needed work and that he had run out of time
to complete the work on that tooth.” (ECF No. 63 at PID 402). Plaintiff refutes ever making
that claim in his objection, and he points to his affidavit. However, Plaintiff’s affidavit merely
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states, “On July 7, 2022, I seen Doctor Daryl Parker . . . and he would not refer back to the
dentist and he would not change the seizure medication.” (ECF No. 1-1 at PID 11). Plaintiff’s
affidavit does not dispute the R&R’s findings. The R&R did not make a credibility
determination, but merely relied on uncontradicted evidence.
Plaintiff further objects to the R&R’s finding that Plaintiff failed to establish that Nurse
Harmon’s failure to renew his medication was causally linked to his protected conduct. Here,
the R&R properly relied on Smith v. Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001). In

Smith, the Sixth Circuit held that close temporal proximity between filing a grievance and
the alleged adverse action alone is generally insufficient to establish causation under the
framework. Id. The R&R correctly concluded that Plaintiff only alleged temporal proximity,
and Plaintiff failed to rebut Harmon’s testimony that she would have provided the same care
to Plaintiff despite his protected activity. (ECF No. 54-2 at PID 328). Plaintiff’s second
objection is overruled.
C.
Plaintiff’s third objection protests his denial of counsel. The court will overrule the
objection because it is not before the court in a proper manner. Indigent civil litigants are
not entitled to counsel, Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir.
1995) and this court has already denied Plaintiff’s request. (ECF Nos. 10,11).
IV. Conclusion
Having conducted a de novo review of the record and claims, the court will adopt the
report and recommendation and overrule Plaintiff’s objections.

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IT IS HEREBY ORDERED that Defendants’ motion for summary judgment (ECF
No. 54) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion to strike (ECF No. 56) is
DENIED.
IT IS FURTHER ORDERED that the report and recommendation (ECF No. 63) is
ADOPTED by the court.
IT IS FURTHER ORDERED that Plaintiff’s second motion to compel medical
records (ECF No. 72) is DENIED as moot.
Judgment to follow.
IT IS SO ORDERED.
Date: June 4, 2024

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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